Class Actions Allege Criminal History Discrimination Under New York City, Federal Laws

The New York City criminal conviction discrimination law strictly limits employers’ ability to consider criminal history in employment decisions. The Fair Chance Act (FCA), which amended the New York City Human Rights Law (NYCHRL), is known as a “Ban the Box” law. States and cities all over the country have enacted BTB laws, so named because of their prohibition on inquiries about criminal history on job applications, often in the form of a check box. At the federal level, the Fair Credit Reporting Act (FCRA) regulates the use of consumer credit information, which can include criminal history. A pair of putative class actions are alleging criminal history discrimination against two New York City event centers under city and federal laws. Millien, et al. v. The Madison Square Garden Co., et al., No. 1:17-cv-04000, 1st am. complaint (S.D.N.Y., Jul. 14, 2017); Kelly v. Brooklyn Events Ctr., LLC, et al., No. 1:17-cv-04600, complaint (E.D.N.Y., Aug. 4, 2017).

The NYCHRL, as amended by the FCA, prohibits New York City employers from discriminating against job applicants based solely on “an arrest or criminal accusation.” N.Y.C. Admin. Code § 8-107(11), N.Y. Exec. L. § 296(16). Employers may not ask about criminal history at all until they have “extended a conditional offer of employment to the applicant.” N.Y.C. Admin. Code § 8-107(11-a)(a)(3). They must follow guidelines established by state law when assessing an applicant’s criminal history, such as the length of time since the offense, the applicant’s age at the time, and the extent to which the offense might affect their “fitness or ability to perform one or more…duties or responsibilities.” N.Y. Corr. L. § 753(1)(c), N.Y.C. Admin. Code § 8-107(11-a)(b)(ii). If an employer makes an adverse decision based on criminal history, it must notify the applicant and give them an opportunity to respond.

The FCRA regulates the collection, dissemination, and use of “consumer reports,” defined to include information compiled by a consumer reporting agency in exchange for compensation, which may include information on an individual’s “character, general reputation, personal characteristics, or mode of living,” and which is intended for use in employment decisions. 15 U.S.C. § 1681a(d)(1)(B). This may include criminal records. Employers must obtain a job applicant’s consent to procure a consumer report and provide them with a disclosure of their FCRA rights. Id. at § 1681b(b)(2). Much like the FCA, the FCRA requires employers to notify applicants of adverse decisions based on criminal history and to allow time for a response. Id. at § 1681b(b)(3).

The lead plaintiff in Millien states that he received a conditional offer of employment from the defendant in July 2015, which it allegedly rescinded several weeks later “as a result of its background check.” Millien, complaint at 9. It did not, the plaintiff claims, provide him with the information required by the NYCHRL and the FCRA. The plaintiff in Kelly alleges similar facts, with an August 2016 employment application denied “because of his criminal history.” Kelly, complaint at 8. Both complaints allege violations of the NYCHRL, the FCRA, and other statutes.

The criminal conviction discrimination lawyers at Phillips & Associates advocate for the rights of New York City job seekers in claims of unlawful employment practices under city, state, and federal laws. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to discuss your case with a member of our team.

More Blog Posts:

Discrimination Based on a New York Job Applicant’s Criminal History May Be Illegal, New York Employment Attorney Blog, December 12, 2017

New York Court of Appeals Clarifies Criminal History Discrimination Under State Law, New York Employment Attorney Blog, December 11, 2017

New York City Announces Charges Against Numerous Businesses for Illegal Job Application Questions, New York Employment Attorney Blog, November 22, 2017


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